Legislature should establish uniform fees for Right-to-Know requests

As the 69th Montana Legislature gears up to meet this winter, lawmakers are spending time thinking about policies they believe will make the state better. The Montana Transparency Project believes one straightforward option is a law standardizing fees for Right-to-Know requests.

While we’ve been assisting Montanans with information requests this year, we’ve heard time and again from folks confused and concerned about how much and when they’ll have to pay for their public information request.

Frustratingly, many of these Montanans have abandoned their requests when presented with a bill for information they haven’t even seen yet. Despite our best efforts, it’s difficult to provide advice on lowering costs or to opine on whether a fee is reasonable when there is so much variance in the way Montana agencies charge citizens seeking public information.

By law, state agencies are allowed to charge a requestor for the cost of fulfilling a public information request. The fee can’t exceed the “actual costs” of fulfilling the request, and each fee has to be documented. The fee may include the time spent gathering the information (a provision reflected in most agencies’ practice of charging the requesting party the actual hourly rate of the employee completing the request).

But it’s not just the cost of paper or the time spent sifting through filing cabinets that agencies can bill for – Right-to-Know fees can even include the time the state spends thinking about how much time it will take to complete the request. Agencies often require upfront payment of a fee estimate before starting to work on the request.

The legal guardrails for public information request fees largely end there. Agencies have broad discretion to set their own internal fee policies – perhaps so broad that these policies are not serving Montanans well.

MTP requested and reviewed each state executive agency’s policy in an effort to provide more transparency on Right-to-Know fees and help Montanans predict how much a request might cost. This review yielded what we’d expected: inconsistent guidance on the assessment of fees from agency to agency.

Of those whose policies specified, agencies charged anywhere from $0.10 to $0.35 per copied page of each responsive document. Some agencies made clear an hourly rate charged to fulfill requests. Others did not. Some agencies listed costs for copying documents. Others did not. Some agencies required upfront payment. Others did not.

Lawmakers don’t have to subject their constituents to this confusing and obstinate system. An amendment to the law standardizing fee assessment for all Montana agencies would eliminate much of the unpredictability that comes with information requests. It would also take pressure off the agencies, allowing them to defer to the Legislature in creating a uniform policy.

A standardized scheme could outline each instance for which an agency may charge a fee. It could establish exactly when an agency can require upfront payment by specifying which sorts of requests (likely the most voluminous and time-consuming) qualify for such treatment. It could designate uniform costs for physical and digital copies of documents. It could limit, as MTP thinks is fair, an agency’s ability to charge for the time it spends deciding how much a request will cost.

Perhaps most importantly, this legislation could prevent agencies from billing Montanans redundant and unnecessary fees – like the hourly wage of the employee fulfilling the request – for the work the state is constitutionally bound to complete.

The Legislative and Executive branches in Montana have spent a lot of time over the last few years thinking about ways to cut through red tape and help Montanans keep more of their hard-earned money in their pockets. Montanans shouldn’t be paying arbitrary amounts for public information they have a constitutional right to access.

Legislation creating uniform Right-to-Know fees would provide predictability for Montanans while taking the pressure off agencies in deciding how much and when to charge for certain services. It’s high time for the Legislature to restore transparency to this opaque process. 

The Montana Transparency Project is a nonprofit organization dedicated to assisting the public in making information requests of governmental agencies and serving as a right-to-know educational resource for public officials and Montanans. Learn more at montanatransparencyproject.org.